In the days following the horrific van attack in Toronto that left 10 people dead and many injured, police and politicians were careful to avoid describing it as a terrorist act.
But as more details emerge about the possible motives of the accused killer, particularly his alleged connection to the misogynist movement known as incel, could he face charges under Canadian law for gender-based terrorism?
“Terrorism” is considered different from ordinary crimes because it endangers national security. As stated in the report on the Air India incident, “terrorism is an existential threat to Canadian society in a way that murder, assault, robbery and other crimes are not.”
In other words, terrorist acts challenge the shape, content and boundaries of the social order. This is why both Canadian and international law treat terrorism with particular severity.
Changes after 9/11
The phenomenon of terrorism is far from new, but there were major reforms to terrorism laws around the world during the first years of the 21st century.
In the aftermath of the 9/11 attacks, and inspired by amendments to British terrorism legislation enacted the previous year, Canada passed its own Anti-Terrorism Act. Responding to the United Nations Security Council’s call for all states to criminalize terrorist activities, the act amended Canada’s Criminal Code, adding a new chapter on terrorism.
These amendments were mainly designed to prevent terrorist acts by expanding the investigatory tools for law enforcement in suspected terrorism cases and adding a set of offences criminalizing elements of the preparatory stages of attacks.
Terrorism, as such, is not a criminal offense in Canada. But participating in the activity of a terrorist group, or facilitating terrorist acts and promoting the commission of terrorist acts, are crimes.
The new Criminal Code provisions also extend to the dissemination of terrorist propaganda; they allow a court to order the removal of speech from the internet.
Ordinary crimes like murder or theft can become terrorist offenses when they are committed in connection with terrorist groups or activities. That means that under certain circumstances, “terrorism” is overlaid on top of these charges to increase their severity.
With respect to sentencing, designating ordinary crimes as terrorism is considered an aggravating factor. Significantly, the maximum available sentence for terrorism crimes has been increased to life imprisonment.
Political, religious or ideological motive
In Canada, the definition of “terrorist activity” includes acts or omissions committed with two key intentional elements.
First, the accused must have acted with “a political, religious or ideological purpose, objective or cause.” Second, he must have intended to intimidate the “public, or a segment of the public, with regard to its security” or to compel a government or organization “to do or to refrain from doing any act.”
The activity in question must also have violently caused death or serious injury, endangered life or caused a serious risk to public safety (including a segment of the public). Causing serious property damage or interference with, or disruption of, an essential service can also constitute terrorist activity if intended to cause these harms.
The legal approaches to terrorism by different countries diverge on whether a political, religious or ideological — and sometimes racial — motive is required for an offence to be characterized as terrorism.
Canada is joined by the UK, Australia, New Zealand and Pakistan in including this “motive clause” in its law.
Importantly, the US Patriot Act leaves out a motive requirement, defining terrorism that occurs on American soil as any crime intended to either intimidate or coerce a civilian population, influence government policy by means of intimidation or coercion or influence government conduct by mass destruction, assassination or kidnapping.
Toronto van attack: Terrorism?
The arrest of accused van driver Alek Minassian means the Canadian government must decide whether to pursue a terrorism case.
The alleged connection of the Toronto van suspect to “incel” comes in the midst of the #MeToo era, so it’s unsurprising we’re seeing calls to address this case as one of terrorism.
These calls have a two-pronged logic.
First, they reiterate the undeniable correlation between misogyny and acts of mass public violence, drawing on a spectrum of ideologies ranging from racism to radical Islam.
Second, they contend that violence against women is itself a form of terrorism, constituting nothing less than a daily war against women.
If national laws have been updated to include acts of peacetime terrorism, then surely, the argument goes, these laws should cover mass violence motivated by misogyny.
On its face, a good legal case could be made for construing the charges against the Toronto suspect as terrorist offences if it turns out he was inspired by or acted on behalf of a movement that promotes violence against women. There is nothing in Canadian law limiting terrorism to acts inspired only, for example, by radical religious ideologies.
In fact, in a 2017 report on terrorism, the government explicitly recognized the increased threat of right-wing extremism.
Serious practical considerations
Many facts are still unclear in the Toronto van case, but Facebook has confirmed that moments before the alleged attack, Minassian posted about the “Incel Rebellion” and lauded Elliot Rodger, who was responsible in 2014 for killing six people in California in the name of a “war on women.”
If the suspect was indeed motivated by this misogyny, and the prosecution can prove other elements of “terrorist activity,” it’s plausible that the charges already laid could be construed as constituting terrorist acts. Minassian is facing 10 counts of first-degree murder and 13 counts of attempted murder.
But there are serious practical considerations limiting the feasibility and added value of such an approach.
Under Canadian law, first-degree murder, defined as planned and deliberate, carries a mandatory life sentence. Any killings that occur during the commission of terror-related acts are elevated to first-degree murder. But Minassian is already charged with first-degree murder and will be sentenced to life if convicted.
Arguing terrorism would also significantly add to the prosecution burden, requiring all the elements of terrorism to be proven beyond a reasonable doubt.
Those calling for this case to be treated as terrorism would likely argue that the optics and symbolism of denouncing Minassian’s alleged crimes as terrorism justify this additional evidentiary burden.
But there are serious policy considerations that go against expanding the legal scope of terrorism as a way to combat the very real and disturbing threats posed by dark online movements like incel.
The idea that we should turn to the language of terrorism and the institutions of the criminal law to address misogyny is part of the general punitive approach that has permeated much of the #MeToo discourse.
I worry that the logic of #MeToo is likely to result in socially and sexually conservative policy proposals. The punitive urge to talk about the Toronto van attack suspect as a terrorist could be one such dangerous invitation.